Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 162-1997
May 9, 1997
INQUIRY RE: A decision by the City of Prince George to deny access to
records concerning parking rights
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on March 19,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review of a
decision by the City of Prince George to withhold four records under section 14
of the Act. In addition, Babine Investments Ltd. (the applicant) believes that
the City should have applied section 25 to disclose the records withheld under
section 14.
2. Documentation of the inquiry process
On September 16, 1996 the applicant submitted a request for all records from
1980 to the present in the custody or control of the City of Prince George
dealing with planning, rezoning, redevelopment/development, bylaw enforcement,
and parking enforcement for a number of commercial properties in the City.
On December 9, 1996 the City responded to the request by disclosing
approximately 835 pages of records and withholding and/or severing four records
under section 14 (Legal Advice). A further request by the applicant on
December 10, 1996 was for records that he believed were missing from the
records disclosed. In addition, counsel for the applicant raised the use of
section 25 with respect to the four documents withheld under section 14.
On December 11, 1996 the applicant wrote to my Office requesting a review of
the City's response to his request for records. The applicant requested my
Office to review the decision of the City to withhold records under section 14
and to determine whether it had conducted an adequate search for records
identified by the applicant in his December 10th correspondence.
The City responded to the applicant on December 13th by providing
clarification/ identification of documents listed in the applicant's December
10th correspondence, some of which were included in the initial disclosure.
The City also advised that it did not agree that there was a public interest in
disclosure of the documents withheld under section 14. With respect to the
adequate search, additional documents were disclosed and documents not located
were identified. On December 20, 1996 the City disclosed to the applicant one
additional document related to the properties that had been located in the
records of an outside law firm.
3. Issue under review at the inquiry and the burden of proof
The issue in this review is whether the City has properly withheld records
under sections 14 and 25 of the Act, which read as follows:
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
25(1) Whether or not a request for access is made, the head of a public body
must, without delay, disclose to the public, to an affected group of people or
to an applicant, information
(2) Subsection (1) applies despite any other provision of this Act.
Section 57 of the Act establishes the burden of proof on the parties in an
inquiry. Under section 57(1), where access to information in the record has
been refused, it is up to the public body, in this case the City of Prince
George, to prove that the applicant has no right of access to the records.
Section 57 of the Act is silent with respect to a request for review on the
failure of a public body to apply section 25 of the Act to disclose records in
the public interest. I am of the view that the burden of proof is on the
applicant with respect to section 25.
4. The records in dispute
The records in dispute are four separate documents of one page each, except
for the fourth document, from a law firm, which is nine pages long.
5. Babine Investments Ltd.'s case
The applicant's detailed arguments on the appropriate application of
sections 14 and 25 are discussed below.
6. The City of Prince George's case
The City has already disclosed 834 pages of records to the applicant. It has
withheld certain information in four of these records under section 14 of the
Act.
The City's view is that only the application of section 25 to its section 14
severances is at issue in this inquiry. I have presented below its more
detailed arguments.
7. Discussion
The subject for this inquiry is a parking lot in Prince George comprised of a
former laneway which the City closed one year prior to the passing of
Restrictive Covenant X13090 and By-Law No. 4305. The laneway was behind a
building now owned by Babine Investments Ltd. The closure left the new owner
without rear access through its existing doors. The applicant and the City are
clearly engaged in a debate over the meaning and timing of the Restrictive
Covenant and the By-Law, which the applicant interprets as permitting parking
for its tenants. Ultimately, I regard these particular matters as outside my
jurisdiction under the Act and appropriate for the courts to settle.
Section 14: Solicitor-client privilege
The information severed by the City concerns confidential communications
between it and its solicitor for the purpose of obtaining legal advice. On the
basis of my own review of these records, I can confirm that they have this
particular character, and that the City was within its authority under the Act
to choose to withhold the records.
The applicant's objection is that the City did not provide it with any reasons
why it refused to exercise its discretion to release the four items of
information in dispute: "The applicant contends that the City of Prince George
refused to exercise its discretion." The applicant invited me to order the
City to exercise its discretion or reconsider its decision not to do so. I see
no reason to do so in the circumstances of this inquiry.
Section 25: Information must be disclosed if in the public
interest
The applicant's position is that the records in dispute must be disclosed on
the basis of this section. It submits that the public interest arises because
the withheld information deals with a Restrictive Covenant that should provide
parking for its tenants, which include Muffin Break Canada Inc. and Earl's
Restaurant Prince George Ltd. In the applicant's view, municipalities that
close a laneway and pass a restrictive convenant "should be held accountable
for their actions and/or failures to act. The applicant submits that it is
clearly in the public interest that such matters are subject to public scrutiny
due to the intrusive role played by municipalities in land use."
As part of its public interest argument, the applicant submitted two newspaper
articles dealing with the matter and argues that the "general public should be
made aware of reasons why a public body refuses to take actions to rectify a
situation which they have control over as a direct result of the City's past
actions/inactions and involvement."
The City is of the view that section 25 has no application to the records in
dispute. In its submission, the applicant's communications with it are "aimed
at furthering the applicant's special and private interests."
Its reply submission added that "[n]o parallel can, or should, be drawn between
private business interests and the public interest in the matter at hand."
I find that the applicant has misunderstood the meaning of "public interest"
in the context of this particular inquiry. The records in dispute concern a
private matter affecting the interests of Babine Investments Ltd., its tenants,
and adjacent residents and property owners. The interests of the parties
seeking disclosure do not rise to the level of public interest as defined by
section 25 of the Act. Moreover, I defer to the similar determination of the
City of Prince George on this matter. In my view, the facts in this inquiry do
not meet the test of urgency and vital communication implied by the language of
section 25. The fact that some members of the public might be interested in an
issue does not necessarily make it a matter "clearly in the public interest."
8.
Order
I find that the City of Prince George has properly applied section 14 of the
Act and is authorized to refuse access to the records in dispute. Under
section 58(2)(b) of the Act, I confirm the decision of the City of Prince
George to refuse access to the records.
I also find that the City of Prince George has acted properly in refusing to
apply section 25 of the Act pursuant to the applicant's request. I make no
order in this respect other than to note that the applicant has not satisfied
me that the application of section 25 to the records in issue is warranted
under the Act.
May 9, 1997
David H. Flaherty
Commissioner